Summary: Collective bargaining and
organisational right – employer refusing to bargain until such
time that union meeting
the threshold of representativeness set out
in the recognition agreement signed with other unions – union
embarking on strike
in order to force employer to meet its demands-
employer locking out union’ s members – dispute relating
to the refusal
to bargain - union not entitled to strike without
advisory award – Labour Court Judgment upheld – appeal
dismissed.

Coram:
Tlaletsi DJP, C J Musi JA et Savage AJA

JUDGMENT

C J Musi JA

[1]
This is an appeal against the judgment of the Labour Court, (Lagrange
J), wherein
it found that the strike, which was embarked upon by
members of the first appellant (NUMSA), was unprotected because it,
firstly,
concerned a refusal to bargain and no advisory arbitration
award had been made and secondly, that the vast majority of the
employees
were bound by a collective agreement that regulated the
issues in dispute. Although the court a quo found against the
appellants on both issues, a finding against the appellants on either
issue would be dispositive of this appeal.

[2]
The respondent, (Transnet SOC Limited), is a state owned company
responsible for transport
and logistics in the Republic of South
Africa. It employed approximately 63 000 employees in various
operating divisions.
One of its divisions, Transnet Port Terminals
(TPT), employed approximately 6255 employees in the bargaining unit.
It employed
approximately 537 employees at the Ngqura Container
Terminal (Ngqura or NCT) which is a small part of the TPT division.

[3]
NUMSA’s testimony was that it had 220 members at Ngqura while
the respondent
contended that it only had approximately 100 members
at Ngqura. It is common cause that NUMSA’s members at Ngqura
are former
members of the South African Transport and Allied Workers
Union (SATAWU)

[4]
NUMSA endeavoured to secure recognition at the respondent, nationally
and at Ngqura.
It wrote numerous letters to the respondent in this
regard. On 24 February 2014, the respondent responded to those
letters indicating
that it would not process payment (of union dues)
in favour of NUMSA until it had achieved the threshold or
representativeness
as prescribed by the recognition agreement entered
into between Transnet, SATAWU and UTATU SARHWU (the recognition
agreement).
The respondent also referred to NUMSA’s letter of
22 February 2014, wherein it requested a meeting, and responded as
follows:

‘A
meeting of the nature you seek will only be considered when NUMSA has
followed due process to obtain recognition/organisational
rights.’

[5]
NUMSA responded on 7 April 2014 indicating that s20 of the Labour
Relation Act 55
of 1996 (the Act), gives unrecognized unions the
right to conclude collective agreements and that the Act does not
define a sufficiently
representative union.

[6]
On 24 April 2014, the respondent responded as follows:

‘1.
As you are aware, the existing recognition agreement between
Transnet, SATAWU and UTATU
SARHWU establishes thresholds for
recognition for all purposes, including organisational rights and
collective bargaining.

2.
Transnet believes that those thresholds are fair, appropriate and
consisted with
the objectives of the LRA, and that they should be
applied consistently to all trade unions. Transnet is not willing to
enter into
a separate relationship with NUMSA to recognise it or to
enter into collective bargaining with NUMSA unless and until NUMSA
meets
the thresholds set in that recognition agreement.

3.
Transnet also does not agree that NUMSA is a sufficiently
representatives union
as contemplated in the provision of Chapter III
of the LRA. If NUMSA disputes this, and believes that it is
sufficiently representative,
it is entitled to use available
mechanisms in term of the LRA to test that belief.’

[7]
SATAWU and UTATU SARHWU (the recognized unions) were the only
recognised trade unions
and therefore the only bargaining agents on
behalf of employees within the agreed bargaining unit. There was a
valid written collective
agreement between the respondent and the
recognised unions. The recognition agreement established certain
thresholds. A trade union
had to represent at least 30% of the
bargaining unit employees across Transnet and 30% in an operating
division in order to enjoy
recognition and organisational rights.
Transnet and the recognised unions were the only parties to the
Transnet Bargaining Council.
NUMSA was not a party to the collective
agreement or the Bargaining Council.

[8]
During the latter part of 2013, the respondent proposed a change in
the manning ratios
at Ngqura. Manning ratios are the number of
employees assigned to a machine or item of equipment per shift within
the port terminal.
It engaged in negotiations with the recognised
unions. The respondent implemented the new manning ratios during
December 2013.
On 14 January 2014, approximately 68 employees at
Ngqura went on an unprotected strike demanding that the responded
revert to the
manning ratios which were in place prior to December
2013. Some of the employees heeded an ultimatum to return to work
whilst others
continued with the industrial action. Those who
continued with the industrial action were suspended pending
disciplinary hearing.

[9]
On 18 January 2014, NUMSA referred two disputes to the Transnet
Bargaining Council.
It is not clear what happened at the Bargaining
Council but on 17 February 2014, NUMSA gave notice that it would
commence with
a strike on 22 February 2014. On 21 February 2014, the
respondent successfully applied for an interdict against the
envisaged strike.

[10] On
28 February 2014, NUMSA sent a letter to the respondent setting out
its demands. The letter
reads as follows:

‘NUMSA
DEMANDS TO TRANSNET PORT TERMINALS

1.We
refer to the above and hereby demand that your company implements the
demand of all our members that your company implements
a change from
the present arrangement where our members work on a five (5) hour on
and one (1) hour basis to a three (3) on and
one (1) hour off basis.

2.The
union is happy to meet with you to discuss the implementation
of our members’ demand, should you wish to do
so

3.As
you are aware, our members’ concerns are that the present
working arrangements lead to fatigue, which could result in the
injury of our members or persons in the vicinity of the heavy
machinery being operated by our members, or damage to property.

4.We
furthermore demand that all of our members who are currently employed
by labour brokers and who render service to or perform
work for your
company be permanently employed by your company. Our demand is
founded on the basis that the work performed by our
members for your
company is ongoing, however, they do not enjoy all social benefits
which are afforded to your permanent employees.

5.The
union further demands that the transport subsidy afforded to
employees at other Ports be afforded to all employees equally,
as
there is no plausible reason as to why such benefit is not applied
equally to all employees.

6.We
anticipate your response by close of business on Monday, 3 March
2014.” (Quoted without correction)

[11] The
respondent replied on 3 March 2014 as follows:

‘Please
note that NUMSA is not a sufficiently representative trade union in
either TPT or Transnet. Accordingly, Transnet is not
in a position to
engage with your union on the issues raised in your latest letter.
Rest assured that the issues you raise are
in process or have been
dealt with by Transnet and its recognised trade unions.’

[12]
On 4 March 2014, NUMSA referred a mutual interest dispute to the
Bargaining Council. It characterised
the dispute as follows:

‘Implementation
of 3.1 (2) Demand permanent employment of labour brokers (3)
Transport subsidy to be equal to all employees employed.’
(Quoted without emendation)

[13]
Under special features of the dispute, it stated that the respondent
was afforded an opportunity
to engage it on the aforesaid demands to
no avail. It stated it desired outcome as follows:

‘To
meet with the respondent in order to reach an agreement to our
demands.’

[14]
On 17 April 2014, no conciliation had taken place and NUMSA issued a
strike notice, on the same
day, indicating that the strike would
commence on 25 April 2014 at 16h00. It further indicated that its
demands were those articulated
in its letter of 28 February 2014.

[15]
After attempts to avert the strike failed, the respondent gave notice
on 24 April 2014 that it
intended to institute a lock-out with effect
from 28 April 2014. The lock-out demands were set out as follows:

‘3.1
NUMSA agrees that Transnet will not engage NUMSA separately on the
matters referred to in 3.2
and 3.3 or on other matter of mutual
interest unless
and until
NUMSA meets the thresholds of representativeness set out in the
existing recognition agreement.

3.2
NUMSA accepts that Transnet has a managerial prerogative to determine
the manning ratios
within the Ngqura Container Terminal; and NUMSA
accepts the manning ratios applied by Transnet from January 2014.

3.3
NUMSA agrees that any engagement between Transnet and Trade Unions
concerning manning levels,
the use of labour brokers, and transport
subsidies will take place with trade unions recognised in terms of
the existing recognition
agreement concluded between Transnet,
SATAWU/SARWHU.’

[16]
The lock-out commenced on 28 April 2014. On 21 May 2014, NUMSA’s
attorneys wrote to the
respondent informing it that its lock-out was
unprotected because its lock-out demands included a refusal to
bargain and that it
could therefore not embark upon industrial action
without first obtaining an advisory award. The respondent’s
attorneys responded
by pointing out that the same would apply to
NUMSA’s industrial action.

[17]
On 12 June 2014, NUMSA issued a press statement wherein it, inter
alia, stated that “it has never been our intention to
embark on an indefinite strike, but the strike was imposed on us by
Transnet
for their blatant refusal to negotiate with us…”

[18]
The respondent further alleged that all but 14 of the second and
further appellants were members
of SATAWU. They were therefore bound
at all material times by the provisions of the collective agreement
and the constitution of
the Bargaining Council. The collective
agreement regulated the issues in dispute and they were therefore
precluded from lawfully
participating in the strike.

[19]
The court a quo found that it seemed “unduly artificial
and strained to say that the dispute does not concern a refusal to
bargain when abandonment
of the stance is an implicit pre-requisite
for acceding to the substantive demands.” It concluded that the
failure by NUMSA
to obtain an advisory arbitration award meant that
the strike was unprotected.

[20]
The court a
quo
had regard to the collective agreement and concluded that NUMSA’s
members who were erstwhile members of the recognised unions
were
still bound by the dispute resolution process contained in the
recognition agreement by virtue of s23(1)(c)(ii) of the Act.[1]

[21]
Mr Van der Riet, on behalf of NUMSA, contended that the purpose of
the strike was to persuade
the respondent to accede to its demands
and thereby resolve the dispute. He further contended that NUMSA
never demanded that the
respondent should negotiate with or recognise
it. He submitted that there was therefore no need to obtain an
advisory award. In
relation to the second issue, he contended that
NUMSA complied with section 64(1) of the Act and it therefore does
not matter whether
the strike procedures in the collective agreement
were not followed. He therefore submitted that NUMSA’s members
were not
bound by any collective agreement that regulated the issues
in dispute.

[22]
Section 64(2) of the Act reads as follows:

‘(2)
if the issue in dispute concerns a
refusal to bargain, an advisory award must have been made
in terms of
section 135 (3)(c) before notice is given in terms of subsection
(1)(b) or (c). A refusal to bargain includes-

‘The
Commissioner must determine a process to attempt to resolve the
dispute, which may include-

(a)…

(b)…

(c)
making a recommendation to the parties, which may be in the form of
an advisory arbitration award.’

[24] Issue in
dispute is defined in section 213 of the Act as follows:

‘in
relation to a strike or a lock-out means the demands, the grievance,
or the dispute that forms the subject matter of the strike
or
lock-out.’

[25]
In Coin
Security Group (Pty) Ltd v Adams and 37Others,[3]it was said that:

‘It
is the court’s duty to ascertain the true or real issue in
dispute…In conducting that enquiry a court looks at the
substance of the dispute and not at the form in which it is
presented. The characterization of a dispute by a party is not
necessarily
conclusive…’[4]

[26]
How the parties understood and characterised the dispute is therefore
relevant but not determinative.
In NUMSA
and Others v Driveline Technologies (Pty) and Another,[5]
it was said that:

‘…it
has been accepted by our courts that a dispute postulates, as a
minimum, the notion of expression by the parties opposing each
other
of conflicting views, claims or contentions…In Williams
v Benoni Town Council1949 (1) SA 501 (W) AT 507 Roper J said, among other things, that a
dispute exists “when one party maintains one point of the view
and the
other the contrary or a different one.”[6]

[27]
The true dispute between the parties can therefore be determined by,
inter alia, having regards to the respective stances and
conduct of parties, the correspondence between them and the
information contained
in the referral.

[28]
The respondent was always of the view that it does not want to
bargain with NUMSA because the
recognised unions were the only
recognized bargaining agents at Ngqura.

[29]
When NUMSA presented its demands in the letter of 28 February 2014,
it also requested to meet
with the respondent to discuss the
implementation of the demands. The respondent’s response was
clear and unambiguous; that
it is not in a position to engage with
NUMSA on the demands because NUMSA was not a sufficiently
representative union at the TPT
or Transnet.

[30]
In its referral, NUMSA clearly stated that the outcome it desired was
to meet with the respondent
in order to reach an agreement on its
demands. This was also because the respondent refused to meet with
it.

[31]
Although NUMSA had clearly articulated demands, those demands could
not be addressed before the
recognition of the union was addressed.
The strike could therefore only be prevented and/or stopped when the
conditions preceding
collective bargaining were met. Only after the
issues pertaining to recognition and organizational rights were
settled could NUMSA’s
demand be attended to. The dispute was
therefore a dispute concerning a refusal to bargain and not a refusal
by the respondent
to meet NUMSA’s demands.

[32]
The respondent’s lock-out demands also made plain that it
wanted NUMSA to accept that it
will not engage in collective
bargaining with it unless and until NUMSA met the threshold of
representativeness as set out in the
recognition agreement.

[33]
In its press statement, NUMSA also stated, correctly, that the strike
was as a result of the
respondent’s blatant refusal to
negotiate with it.

[34]
In my judgment, the dispute in this matter concerned a refusal to
bargain and NUMSA could only
embark on industrial action after
obtaining an advisory arbitration award.

[35]
My conclusion on this issue renders it unnecessary for me to deal
with the second issue. In my
view, the law and fairness dictate that
no order as to costs should be made.

“(1)
Every employee has a right to strike and every employer to lock-out
if-

(a)the
issue in dispute has been referred to a council or to the Commission
as required by this Act, and –

(i)a
certificate stating that the dispute remains unresolved has been
issued; or

(ii)a
period of 30 days, or any extension of that period agreed to between
the parties to the dispute, has elapsed since the referral
was
received by the council or the Commission; and after that-

(b)in
the case of a proposed strike, at least 48 hours’ notice of
the commencement of the strike, in writing, has been given
to the
employer, unless-

(i)the
issue in dispute relates to a collective agreement to be concluded
in a council, in which case, notice must have been
to the
council; or

(ii)the
employer is a member of an employer’s organisation that is a
party to the dispute, in which case, notice must have been
given to
that employers’ organisation; or

(c)in
the case of a proposed lock-out, at least 48 hours’ notice of
the commencement of the lock-out, in writing, has been
given to any
trade union that is a party to the dispute, or, if there is no such
trade union, to the employees, unless the issue
in dispute relates
to a collective agreement to be concluded in a council, in which
case, notice must have been given to that
council; or…”